ORDERS:
FINAL ORDER AND DECISION
This is an appeal of Respondent's November 14, 2001 order which affected Appellant's license as a physician in South
Carolina. Counsel for the Appellant and the Respondent presented oral argument on April 2, 2002.
FACTUAL BACKGROUND
This matter arose from a Final Order of the South Carolina Board of Medical Examiners. The matter began with the filing
of a formal complaint on December 17, 1998, charging Appellant with several violations of the Board's Practice Act, S.C.
Code Ann. §40-47-200 et seq, (1986 and Supp. 1997) and related Regulation 81-60. The violations arose from a pattern of
acts related to the Appellant's treatment of patients for obesity.
The evidentiary hearing in the matter was held on November 3, 1999 before a Hearing Panel composed of three members
of the Medical Disciplinary Commission. The Hearing Panel issued its Report on November 14, 1999. The Report found
the Appellant guilty of several specific violations of the standard of care for physicians. The Hearing Panel recommended
that Appellant be sanctioned by the Board for his misconduct.
The Final Order hearing was held on February 7, 2000. The Board issued its Final Order which is the subject of this appeal
on March 1, 2000. The Board found the Appellant guilty of failing to provide competent medical care, and therefore, with
violations of S.C. Code Ann. § 40-47-200 (F)(7) and Regulation 81-60, S.C. Code of Regulations. As a result, the Board's
Order imposed the following (1):
- Respondent be, and he hereby is, publicly reprimanded.
- On the effective date of this order, the Respondent's license to practice medicine in this State is hereby indefinitely
suspended until such time as the Respondent has paid a fine in the amount of Ten Thousand and No/100 ($10,000.00)
Dollars. This fine shall not be deemed paid until received by the Board.
- Upon payment of the fine, the Respondent's license shall be restored upon the following terms and conditions, which
shall remain in effect until satisfactory compliance with the terms and conditions or until further order of the Board:
- Within one year of the date of this order, the Respondent must attend and successfully complete, at his own
expense, the drug education course approved by the Board, offered by Forensic and Educational
Consultants, Cherry Hill, New Jersey. The Respondent must file written proof of compliance with the
Board within fifteen (15) days after completing this requirement.
- Within one year of the date of this order, the Respondent must successfully take and pass the SPEX
(Special Purpose) examination. The cost of the examination shall be borne by the Respondent.
4. Failure by the Respondent to comply with any of the aforementioned terms and conditions shall warrant the immediate
suspension of his license to practice medicine in this State pending hearing into the matter and until further order of the
Board.
5. This final order shall take effect seven (7) days after service of this order on the Respondent or his counsel.
The Appellant appealed the order. The appeal was heard by The Honorable C. Dukes Scott, Administrative Law Judge, and
remanded to the Board by his order of November 7, 2000 wherein Judge Scott ordered the Board to set forth "a detailed
explanation to support Findings of Fact # 3,4,5,6,8, and 9." The Order on Remand also instructed the Board to articulate
upon which Findings of Fact it had relied in concluding that Appellant's failure to document medical treatment and service
adequately constituted the failure to provide competent medical treatment.
The Board complied with the Order of Remand from Judge Scott by issuing its order on Remand dated December 19, 2000.
Appellant brought a second appeal which was also heard by Judge Scott. The second appeal resulted in the Second Order of
Remand dated September 24, 2001, in which Judge Scott made very specific findings that certain Findings of Fact must be
deleted from the Final Order. Judge Scott also required the Board to modify Finding of Fact #3 and Conclusion of Law
#2.A.1. The Board complied by issuing a Modified Order on Remand on November 14, 2001, which is the subject of this
appeal.
II. STANDARD OF REVIEW
Jurisdiction on appeal is vested in the Administrative Law Judge Division pursuant to the Administrative Procedures Act
(APA), specifically S.C. Code Ann. §§ 1-23-600(D) (Supp. 2001) and S.C. Code Ann. 40-1-160 (2001). On appeal to the
Division, the standard of review is limited to the record presented. The APA governs the reasons an appellate body may
reverse or modify an agency decision. That section provides:
The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions or
decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
S.C. Code Ann. §1-23-380 (A)(6) (1986 and Supp. 2001).
An Administrative Law Judge may not substitute her judgment for that of the agency unless the agency's determination is
affected by error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole
record. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2001); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).
A decision is supported by "substantial evidence" when the record as a whole allows reasonable minds to reach the same
conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App.
1984). The well-settled case law in this state has also interpreted the rule to mean that a decision will not be set aside
simply because reasonable minds may differ on the judgment. Lark. The fact that the record, when considered as a whole,
presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's finding
from being supported by substantial evidence. Waters v. South Carolina Land Resources Conservation Comm'n, 321 S.C.
219, 467 S.E.2d 913 (1996); Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995); Palmetto
Alliance, Inc. v. South Carolina Public Service Comm'n, 282 S.C. 430, 319 S.E.2d 695 (1984).
In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct.
Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357 (1996)(citing Kearse v. State Health and Human Finance
Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995)). Furthermore, the reviewing court is prohibited from substituting its
judgment for that of the agency as to the weight of the evidence on questions of fact. Grant (citing Gibson v. Florence
Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984)). Finally, the party challenging an agency action has the burden of
proving convincingly that the agency's decision is unsupported by substantial evidence. Waters, (citing Hamm v. AT&T,
302 S.C. 210, 394 S.E.2d 842 (1994)).
STATEMENT OF ISSUES ON APPEAL
1. Does Finding of Fact #3 in the Board's Second Order on Remand clearly and completely state facts and rationale
of its conclusion as required by Judge Scott's Second Order of Remand?
2. Does Conclusion of Law #2.A.1 in the Board's Order on Remand clearly and completely articulate facts and
rationale of its conclusion as required by Judge Scott's Second Order of Remand?
3. Should the sanction imposed by the Board in this case be affirmed on appeal?
ANALYSIS
1. FINDING OF FACT # IN THE BOARD'S ORDER ON REMAND CLEARLY AND COMPLETELY
ARTICULATES FACTS AND RATIONALE OF ITS CONCLUSION AS REQUIRED BY JUDGE SCOTT'S
SECOND ORDER ON REMAND.
Finding of Fact #3 of the Board's Modified Order on Remand currently on appeal before
me states:
3. The State presented expert testimony and a written review by the expert of a number of the Respondent's patient records.
Bariatric practice is not a recognized medical specialty. The State's expert, a board certified family practitioner was
properly qualified in this field as the treatment of obesity is an accepted facet of family practice. The State's expert
concluded, and we concur, that the Respondent's practice was deficient as follows: the documentation in the medical
records was inadequate in 19 of the 20 cases (specifically, these 19 cases were: P.A., B.B., V.C., L.C., B.C., S.C., B.D.,
D.H., G.H., C.H., W.K., C.O., A.P., J.S., M.S., R.S., D.T., N.T., and B.V.), and the patient was not an appropriate
candidate for controlled medication in 1 of the 20 cases (V.C.).
The only issue in Finding of Fact #3 remaining to considered in this appeal is whether there is substantial evidence in the
Record that the documentation in the medical records was inadequate in 19 of the 20 cases reviewed. In the Second Order
on Remand, Judge Scott found that the evidence showed only one case where a patient was prescribed anorectic
medications and was not a proper candidate for such medication. The Second Modified Order of the Board which is before
me in this matter properly reflects that finding. Therefore, this issue has been decided by Judge Scott and is not before me.
In determinations as to evidentiary sufficiency, the key issue is whether there is substantial evidence that supports the
conclusion of the administrative body that the State met its burden of proof by a preponderance of the evidence.
Anonymous v. The State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). Substantial evidence "is not a
mere scintilla of evidence nor the evidence as viewed blindly from one side of the case, but is evidence which, considering
the Record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or
must have reached in order to justify its action." Wilson v. State Board of Medical Examiners, 305 S.C. 194, 406 S.E.2d
345 (1991). Thus, the appellate courts of this State should "not overturn a finding of fact by an administrative agency
unless there is no reasonable probability that the facts could be as related by a witness upon whose testimony the finding
was based." Lark vs. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304, 307 (1981)(emphasis added). Here there is a reasonable
probability that the facts are as related by the testimony and documents presented below.
The Board had before it the entire record compiled by the Hearing Panel. This included not only a transcript of testimony
from witnesses, but also the exhibits admitted into evidence. These exhibits included the medical records of twenty of
Appellant's patients. These records were reviewed by an independent expert physician witness retained for that purpose by
the Department, the three physicians sitting as a Hearing Panel, and the full Board, composed entirely of physicians, except
for one consumer member appointed by law.
Testimony was taken from Robert B. Hanlin, M.D., a Board-certified family practitioner, who was retained by the
Department staff to review twenty patient charts obtained by subpoena from Appellant's office. (2) Dr. Hanlin's written
review of those charts was admitted into evidence as well. Dr. Hanlin's direct testimony consisted of a patient-by-patient
description of his findings and opinions regarding the treatment of each patient for obesity. Dr. Hanlin testified that
documentation was inadequate in 19 of the 20 charts reviewed. Dr. Hanlin's testimony showed, not merely abbreviated or
sloppy documentation, but a pattern of failing to document the need for prescribing and dispensing of controlled
substances. In many of the charts the only notations regarding the dispensing of controlled anorectic medication were
rubber stamp entries of "Didrex 50mg. #90,1 AC TID" without a physician's initials or signature. This is an inadequate and
unacceptable level of documentation of the prescription or dispensing of controlled substances. Other charts contained a
physician's initials after the rubber stamp, but many of the charts contained entries of numerous visits with no history
recorded. Further, the charts contain pre-printed checklists rather than written notes. The records show a lack of tailoring
or modification of therapy, regardless of progress. Many office visit notes reflect only vital signs and prescription refills.
Also, on cross examination, Dr. Steelman, Appellant's expert, testified that many of the documentary notations one would
expect to see in a bariatric patient's chart were often missing in Appellant's charts. Tp. pp. 140-161.
When evaluating a physician's actions, the standard of care must be considered. The physician members of the Medical
Board are presumptively competent to pass on the standard of care for the practice of general medicine. The Board is
enabled by statute to use its collective experience, technical competence and specialized knowledge in the evaluation of the
evidence. S.C. Code of Laws, §1-23-330 (4). The Board may consider expert witness testimony regarding standards of
medical care, but is free to use its own expertise in evaluating that testimony or disregarding it altogether.
In South Carolina, the courts have recognized a professional standard of care. The Supreme Court addressed the issue of
standard of care in Keaton ex. rel. Foster vs. Greenville Hospital System, 334 S.C. 488, 514 S.E.2d 570 (1999). In Keaton,
the Court said:
In King v. Williams, 276 S.C. 478, 279 S.E.2d 618, 620 (1981), this Court put forth
the standard of care for a medical practitioner. This Court held: "The degree of care
which must be observed is, of course, that of an average, competent practitioner
acting in the same or similar circumstances." King, at 482, 279 S.E.2d at 620
(emphasis added). Since the King decision, our Court of Appeals has defined
medical malpractice as "the failure of a physician to exercise that degree of care and
skill which is ordinarily employed by the profession generally, under similar
conditions and in like surrounding circumstances," Jernigan v. King, 312 S.C.
331, 333, 440 S.E.2d 379, 381 (Ct.App.1993) (emphasis added). The standard for
recovery has been summarized, "To recover for medical malpractice, a plaintiff must
show failure by a physician to exercise that degree of care and skill which is
ordinarily employed by the profession under similar conditions and in like
circumstances, " Bonaparte v. Floyd, 291 S.C. 427, 354 S.E.2d 40, 45
(Ct.App.1987) (citing Welch v. Whitaker, 282 S.C. 251, 317 S.E.2d 758
(Ct.App.1984)) (emphasis added).
Where the medical field of the physician whose care is at issue is a recognized profession or specialty in South Carolina,
the standard of care in that field must be established by the testimony of one knowledgeable or skilled in that field of
practice. Because South Carolina does not recognize a practice specialty for bariatric medicine, and a physician practicing
medicine in that field may be a general practitioner. A general practitioner is competent to offer expert testimony as to the
standard of care of a physician practicing under similar conditions and in like circumstances. The standard of care is that
degree of care and skill which is ordinarily employed by a general practitioner under similar conditions and in like
circumstances. It is preferable that a practitioner offering expert testimony as to the standard of care of a physician
practicing bariatric medicine also be a general practitioner practicing bariatric medicine, or address the standard of care
within the context of those conditions and circumstances.
Taken as a whole, the patient charts, Dr. Hanlin's testimony, and Dr. Steelman's concessions provide an ample record to
support the Board's decision. I find that in reviewing this record, in the light of the cases cited above, that the Board should
be affirmed on its Finding of Fact #3.
2. THE BOARD'S CONCLUSION OF LAW 2.A.1. CLEARLY AND COMPLETELY ARTICULATES FACTS
AND RATIONALE OF ITS CONCLUSION AS REQUIRED BY JUDGE SCOTT'S SECOND ORDER ON
REMAND
In Judge Scott's Order of September 24, 2001, he required the Board to re-write Conclusion of Law 2.A.1 to reflect the
changes made to the Findings of Fact. The Board did this in its Second Order on Remand. The Board has amended
Conclusion of Law 2.A.1 so that this Conclusion of Law is based on findings that have been reviewed and upheld. These
include The Board finds that the Appellant has violated S.C. Code Ann. §40-47-200 (F)(7)(discipline for misconduct can
be based upon a satisfactory showing that the doctor has violated the principles of ethics as adopted by the State Board of
Medical Examiners and published in its regulations). The principle of ethics have been adopted by the Board and are set out
in 26 S.C. Code Regs. 81-60. §81-60 (A) states, "A physician shall be dedicated to providing competent medical service
with compassion and respect for human dignity." After amending its Findings, the Board correctly found that his actions
violated this principle of ethics.
3. THE SANCTION IMPOSED BY THE BOARD SHOULD BE AFFIRMED.
The Board ordered a public reprimand, a $10,000.00 fine and required that within one year of the date of this order,
Appellant must attend and successfully complete, at his own expense, the drug education course approved by the Board,
offered by Forensic and Educational Consultants, Cherry Hill, New Jersey. The Appellant must file written proof of
compliance with the Board within fifteen (15) days after completing this requirement. Also, within one year of the date of
this order, the Appellant must successfully take and pass the SPEX (Special Purpose) examination. The cost of the
examination shall be borne by the Respondent.
The Appellant argues that after the two previous appeals in this case, it has been whittled so much that it is not the same
case in which the Board initially decided its sanctions. Therefore, he argues, to keep the same sanctions in place is arbitrary
and an abuse of discretion.
An exercise of discretion by an administrative agency will not be disturbed unless there is an abuse of discretion evidenced
by a showing that the action of the agency was arbitrary or unlawful. 73A C.J.S. Public Administrative Law and Procedure
§ 223a (1983). An administrative sanction cannot be said to be unduly harsh if it is within the Board's authority to impose.
South Carolina Bd. of Examiners in Optometry v. Cohen, 256 S.C. 13, 180 S.E.2d 650 (1971). As a creature of statute, the
Board possesses "only those powers that are expressly conferred or necessarily implied for it to effectively fulfill the duties
for which it is charged." Captain's Quarters Motor Inn, Inc. vs. South Carolina Coastal Council, 306 S.C. 488, 490, 413
S.E.2d 13, 14 (1991). The legislature vested the Board with wide latitude in fashioning sanctions in physician disciplinary
cases. The authority to review the findings of and punishment imposed in the Board's order is confined to the correction of
errors of law. This tribunal is not permitted to substitute its judgment for that of the Board unless the Board's action was
influenced or controlled by some erroneous view of the law, was without substantial evidence to support it, or amounted to
a manifest abuse of discretion. State v. White, 218 S.C. 130, 61 S.E.2d 754 (1950). I find that the sanctions imposed are
within the Board's range of available sanctions and are not excessive or arbitrary.
Also, it is clear this was not an oversight. In the Second Order on Remand on appeal in this matter, the Board explicitly
says that it reconsidered the sanctions. However, they found it necessary to leave the sanctions in place.
CONCLUSION
The Board's decision to sanction the Appellant is adequately supported by the reliable, probative and substantial evidence
in the whole record of the case as it comes before me on appeal. Further, the sanctions are within the range authorized by
the statute. Therefore, the decision of the Board of November 14, 2001 is hereby AFFIRMED.
AND IT IS SO ORDERED.
__________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
This 12th day of July 2002
Columbia, South Carolina
1. This language is taken directly from the Board's order. In that order, Dr. Bolt, the Appellant in this appeal, was the
Respondent.
2. Appellant challenges whether Dr. Hanlin should be recognized as an expert. However, Judge Scott clearly upheld the
Board's reliance on Dr. Hanlin as an expert in his September 24, 2001 order. |